Thursday, June 29, 2006

Or What's a Uniform For?

Today's Supreme Court ruling seems to me a remarkable point in the
development of a kind of quasi-sovereignty for non-state organizations.

Were there to develop an Anti-Qaeda force, a private military to pursue Al
Qaeda and win the war on its own terms, then their members would also have the
Geneva Conventions apply to them, were they ever to be apprehended or detained
by the US, yes? In other words, if the Geneva Convention now applies to a
non-state that is a non-signatory in the eyes of the US, does it not then
apply to ALL non-states that are non-signatories?

This is quite a large new degree of sovereignty that has been granted to
non-state organizations. How will the concept of citizenship evolve with
decisions like these?

If protections that normally accrue to states after debate and ratification
can now be given over to non-states which have no mechanism for ratification,
let alone debate, one can easily imagine a scenario in which non-state
organizations form themselves and immediately possess the rights of a state,
with no corresponding need to adhere to any laws in their own activities.

If this is the case, then we have the answer to the war: it will be
privatized, and its ultimate victories won by uninhibited private military
actors, not the hamstrung citizen militaries of nation-states.

Any legal minds out there are welcome to comment.

I certainly do hope that legal minds chime in. From a layman's point of view
the answer to Chester's rhetorical 'if al-Qaeda is protected doesn't that mean
any privately organized violent effort is similarly protected' must logically be
"yes". Some time ago
I conjectured that al-Qaeda's asymmetrical advantages were in retrospect
evanescent because any anti-Muslim organization could emulate them.

Long before a faculty lounge in Islamabad or Riyadh realizes it can build a
bomb alone and secretly, the same thought will have occurred to individuals in
Tel Aviv, New Delhi or Palo Alto. Any Islamic group that believes it can
attack New York deniably should convince itself that no similar group can nuke
Mecca at the height of the pilgrim season. In fact, the whole problem that
Coll describes should be generalized. The only thing worse than discovering
that New York has been destroyed by persons unknown is to find that Islamabad
has been vaporized by a group we've never heard of.

Any environment capable of producing terrorism on a scale which could
destroy America would be sufficiently powerful to destroy Islam -- and destroy
it first many times over. Any weapon that AQ Khan can make can be bought by
believers and infidels alike. The theorists of asymmetrical terrorist warfare
forgot that its military effectiveness depends on the very restraints that it,
itself, dissolves. ...

Of course if we really believed in the oft-recited mantra that new
technologies are empowering private groups to levels equal to states -- if we
really believed it and took it seriously -- it would necessarily follow that
something like what Chester suggests would eventually happen. Non-state actors
would be become legitimate actors on the battlefield. And there would be no
putting the genie back in the bottle. Only hours
ago I wrote, without completely thinking it through that:

Hamadan, I think, may come to be regarded by future historians as a blow
against the Geneva Conventions. Not because anyone will disobey them; but
because their fulfillment -- as fulfilled they now must be -- will have the
effect of undermining the very institutions on which they are based; of
reinforcing not reciprocity but asymmetry in battlefield etiquette. In a word,
of producing exactly the opposite of their reason for existence.

This is not to say that Hamadan puts al-Qaeda on the same level of uniformed
soldiers. But as Chester notices, the camel's nose is in the tent. He says,
"If this is the case, then we have the answer to the war: it will be
privatized, and its ultimate victories won by uninhibited private military
actors, not the hamstrung citizen militaries of nation-states." In fact
look for this to happen. The traditional riposte of uniformed militaries to
restrictions has been to job out the dirty work to "militias" and
other deniable combatants.

109 Comments:

Wretchard, there seems to be an unstated assumption in your writings today (and the writings of others), that other signatory nations are likely to treat Hamdan as binding (or at least very persuasive) authority. If actually faced with the issue, I'm not so sure that even the Euros will do so.

You've correctly observed the unstated assumption which Chester corrects when he says "were they ever to be apprehended or detained by the US, yes". And I guess it is an omission. But then if the Euros don't observe it, and the al-Qaeda don't observe it, then what sort of treaty is it that binds only one or two parties when it is supposed to be "universal"? Nevertheless, Chester's question I think is a valid one.

Policy creates an environment with both incentives and penalties. The question is, what kinds of incentives to al-Qaeda like behavior arises from Hamadan, if any? One could say none whatsoever. Is that correct?

Wretchard: I guess I'm not really disputing that particular point about incentives, although the degree of impact of such minor incentives on an organization like Al Qaeda (that seems to have no dearth of more compelling incentives) is debatable. My point is that for this decision to be a "major blow" to the Conventions it will likely require other signatories to follow the decision. Otherwise, it's just a set of handcuffs for the U.S. As an aside, I'm moderately surprised that this seems to be treated as an issue of first impression. My guess is that other nations are doing essentially what we were doing, but on such a small scale that nobody has paid attention.

There is a sort of a parallel here in residential urban planning. In the centers of certain large European cities today there are dual systems in operation: communities in which the planning regulations are applied and other (immigrant) communities where they are not, because multicultural policies and taboos won't stand for their application to immigrants, who have figured this out.

As far as I can see this system, which is driven by no formal scheme or series of approvals, isn't becoming more symmetrical or more logical. Native British or French citizens are far more exposed to the dangers of operating in these zones (say buying or upgrading a house) because they are very effectively 'tagged' and identifiable by their governments, and thus remain subject to the regulations, while various classes of immigrants are not.

This amounts to a ceding of territory, where our rules apply on this side of a given (moving) line, and another set of rules slanted against indigenous citizens operates, as Wretchard said the other day, 'beyond the wire'. We are ceding territory in this way inside our major cities.

...we have the answer to the war: it will be privatized, and its ultimate victories won by uninhibited private military actors, not the hamstrung citizen militaries of nation-states.

There's also the possibility that the war will come to be fought and eventually won pretty much entirely by robotic proxies for the citizen militaries of nation-states. Imagine, if you will, men no-one has ever heard of pushing buttons controlling the machines that can never be traced with certainty to their true source.

Who needs the Geneva Conventions? We will fight to win, damn the consequences, and most people will never know there's a war on.

Yes, except the lefties out there will try to outlaw doing just that. At the same time, the lefties will probably be tempted to establish their own private armies to war against anybody they wish in the West.

The alternative is to withdraw from the Geneva Conventions and declare what forms of conduct the U.S. will adhere to. This raises interesting issues in Constitutional and international law.

A legal contract requires both parties to uphold their required parts of the contract. Otherwise it is considered null and void.

The Geneva Conventions is and was intended as a Legal Contract between two warring parties. Can you imagine a business contract were one side must pay the other for services they never even pretend to do.

Why should today’s enemy or tomorrows enemy give a sh*t about the Geneva Convention when it’s a one sided contract that even if they disregard we must still honor. That is asinine.

Each side should only honor what the other side honors. In WW2 the Germans honored POW standards and we did in kind yet they disregarded the don’t target civilians part and well we did in kind, their saboteurs infiltrated with no uniform and they were treated as criminals and well pole+sabeutor+cigarette+blindfold=well you get the picture. This gives both sides the incentive to do the right thing and honor their part of the contract.

One of the more obscure and curious features of the Geneva Convention that I recall from my ROTC studies is that the crews of military aircraft are not required to wear military uniforms, since the insignia on the aircraft served as their identification.

Perhaps Al-Queda could claim that they were all military aircrew but did not have their aircraft with them at the time they were captured?

A side note on this provision: It probably was a practical approach, since most military aircrew gear is not very distinictive, almost universally consisting of some form of one-piece coverall.

I recall reading of a case where a B-17 gunner, shot down over France near a German-occupied town decided to forgoe the usual fruitless evasion of pursuit and walked into town expecting to surrender to the first German he met. He was astounded that he was studiously ignored by the numerous Whermacht troops he encountered; his openness made them assume he was a Luftwaffe pilot who had been downed and was seeking the usual ride back to his airfield. They would rather not be bothered by such incompetant flyboys. The French Resistance recognized him for what he was and spirited him away to safety.

Wretchard, are you predicting the creation of modern day privateers? It is an interesting and somewhat desirable proposition. Unconstrained warmaking capability and plausible deniability, hummm? If I am not mistaken, privateers were delt with rather harshly when captured, not afforded the deferrence given uniformed soldiers. Perhaps we can learn something from those that were able to make such distinctions. Perhaps ours memories are not quiet so short.

I don't think it's desirable. The question is whether it is inevitable. One of the main pillars of civilization is that the state, not the individual or tribe, should have the monopoly on violence. Enemy soldiers, dressed in the livery of their King, were therefore agents of the state, not to be individually punished, and to a certain degree not even to be held accountable for their acts because they were not free agents but individuals doing their Sovereign's will.

Now we live in an age when, for example, Hamas can commit what was formerly an act of war but which their Sovereign can disavow. If they have a nuke, they can blow up Boston and theoretically, there would be "no one" against whom we could retaliate.

Civilization starts to break down when we tacitly admit that this private warfare is Ok. Sooner or later, though it may have been initially unintended, other entrepreneurs in the violence industry will get the drift and act within the environment we've created. There was a lot of talk about how "letting mobs run wild in Baghdad" kickstarted the insurgency. Looting was OK. Gang activity was OK. Then nothing was OK. It all went to hell. There can be a global equivalent to that.

Wearing a uniform puts you at some disadvantages. It makes you a target. It restricts your options. Shed your uniform and you are free of the disadvantages. And then we destroy the very incentives -- the expectation of mutually respected legitimacy -- which international humanitarian law was created to maintain. The incentive lay in the symmetric expectations. We've taken that away and I'm just wondering what we have left.

I don't it helps to exaggerate the case. The USSC decision didn't turn the al-Qaeda loose. It doesn't have any immediate impact but if it has the eventual impact the Left hopes that it has, then I think it will not have contributed to either civilization or humanitarian law.

It's interesting, isn't it? Originally, we saw the Geneva Conventions primarily as a means of safeguarding our military from the depradations of the enemy. (We gladly agreed to treat his well if he treated ours well, because from our perspective that wasn't really a problem.) Now it seems the Conventions are meant merely to safeguard the enemy from us.

Meanwhile, the enemy gets to behave, or not behave, in any manner he chooses.

Since Iraqi Baathists want an amnesty after fighting without uniforms and assassinating civilians, our negotiators ought to tell them they can have it right after the Coalition and the Iraqi government take a little holiday from the rules of war.

If they still want their amnesty after we set that little condition, we could probably do quite a bit of damage to Baathist infrastructure before we all return to legalities.

I suspect the relevant grandees by now would be willing to hand over their foot soldiers for prosecution rather than face war without restraints.

"And then we destroy the very incentives -- the expectation of mutually respected legitimacy -- which international humanitarian law was created to maintain. The incentive lay in the symmetric expectations. We've taken that away and I'm just wondering what we have left."

Good question Wretchard. Yet the "expectation of mutually respected legitimacy" was destroyed long ago. Todays ruling seems to attempt to maintain the illusion that it was not.

...Hamas can commit what was formerly an act of war but which their Sovereign can disavow. If they have a nuke, they can blow up Boston and theoretically, there would be "no one" against whom we could retaliate.

Wretchard, it would seem to me that Hamas now works with less impunity in this regard, unless it can work through its agents in a manner that cannot be linked back to it. Though they are not yet the Sovereign of an official, recognized state, whatever it is it is something, I think, that could have war waged against it should its government sanction an incitement rising to an act of war.

Of course we would still have to connect the agents responsible to those that sent them. Maybe an easier thing said than done, maybe not.

WASHINGTON, DC – Today Senator Arlen Specter (R-Pa.) introduced the Unprivileged Combatant Act of 2006. The bill balances the need for national security with the need to afford detainees with sufficient due process. A section by section summary of the bill follows. A copy of the bill, as introduced, is attached. Section 301: Findings: This title is in direct response to the United States Supreme Court’s ruling in Rasul v. Bush. Section 302: Definition Section: Defines primary terms in the bill such as field tribunal, classification tribunal, military commission, and unprivileged combatant. Section 303: Authorizing Military Commissions: Authorizes the president to establish military commissions for the trial of individuals for offenses provided in this titleSection 304: Jurisdiction Over Unprivileged Combatants: This title establishes exclusive jurisdiction to hear any matter involving an unprivileged combatant who has been detained by the Department of Defense at Guantanamo Bay, Cuba...[Much more follows]

I'm not a military lawyer - but my writings on certain military legal issues have on occasion been mistaken for the work of a lawyer -and by a real JAG officer.

So let's pull one of my favorite tricks and turn the issue on its head.

Could this ruling also mean that the actions and accompanying statements of scattered domestic nuts and Islamic enthusiasts be accepted as defaco evidence of their membership in Al Quada, despite their lack of a membership card or secret decoder ring? Does this mean that the Miami 7, the Muslim who drove his car into the crowd in NC, the American elements of the Canadian terrorist conspiracy, et. al, be designated as enemy combatants and thus be removed from the civilian court system and jails and be interred in Gitmo or some other military POW facility? And interred "for the duration" or until satisfactory negoiations are completed with our adversaries?They could be turned over to the civilian court system for trial on any local charges after the resolution of their POW status- say, circa 2079 or thereabouts.

"The case invites more legislation, and members of both parties have got to be furiously cooking up proposals. I suspect that those who are most disappointed by the outcome of the case have the most political advantage looking toward the next few months."

Which is a far better and lawyerly way of saying the issues will now be revisited on a far more fundamental level than had the Executive been upheld. Making the debate explicit and moving into the political sphere will bring the whole concept of Geneva itself under scrutiny. I do not expect, nor do I believe it desirable, to dispense with humanitarian law; least of all is it desirable to have an outcome where torture or its practical equivalent is somehow condoned. But it is perfectly reasonable to hope for workable rules of engagement to emerge from this process.

Someone said that in the relationship between nations there must be intruments which fall between a diplomatic protest and sending in the Marines. In the same spirit, there must be some permissible action between merely requiring name, rank and serial number and Death By a Thousand Cuts. It's the political system's problem now to define it. And that's heavy lifting.

I believe it was Reuel Marc Gerecht who made the comment about "something between diplomacy and the Marines" and he was speaking in the context of our lack of covert action capabilities vis a vis Iran.

Also, I'm with you: It's interesting to think about a world with private entities running roughshod all over and providing various forms of security at various levels in various places, but in the end, thinking about it is all I'd like to do. I wouldn't want to live in it. I'll keep my uniform, thanks. Something fundamental will have been lost to civilization if things actually come to this. It goes very much along the same lines as your comment in one of your posts about the NYT and SWIFT: It sucks that they outed the program, and it sucks that guys like me are now trying to shame them for it. The whole thing stinks because in some level our civilization is breaking down. Niall Ferguson and Mark Steyn are right: we won't live in a multipolar world if the US goes down in flames. We'll enter the Dark Ages.

RWE: Your scenario is very, very interesting indeed. If I'm an American citizen, but a member of Al Qaeda, and Congress passes a law that Al Qaeda members will be tried by tribunals, does the executive have that option? And what happens when Al Qaeda morphs into a movement (bin Ladenism in the lexicon of the DoD) from an organiztion? Such is the case with the Miami crew yes? They drank the Koolaid, but never could get in touch with the leadership.

motr_dude, yes, I tried to make it assumed in my post that the US now recognizes these rights on the part of Al Qaeda, not necessarily that the Euros do, or would.

meme chose, your observation about the ceding of sovereignty is spot on: Bruce Bawer discusses this at length in "While Europe Slept" and it is truly incredible to read his anecdotes of how the authorities only selectively enforce their laws by virtue of basically whether the offender is a Muslim or not. Equal protection under the law is rapidly ceasing to exist there . . .

I don't know just how pertinent this is to the current discussion, but I was reminded of Ross Perot's bold rescue of 2 of his employees from an Iranian prison in 1979. Wiki -

"Just prior to the 1979 Iranian Revolution, the government of Iran imprisoned two of his employees in a contract dispute. Perot organized and sponsored a successful rescue. The rescue team was led by retired U.S. Army Special Forces Colonel Arthur D. ('Bull') Simons. When the team couldn't find a way to extract their two prisoners, they decided to wait for a mob of pro-Ayatollah revolutionaries to storm the jail and free all 10,000 inmates, many of whom were political prisoners. The two prisoners then connected with the rescue team, and the team spirited them out of Iran via a risky border crossing into Turkey. The exploit was recounted in a book, On Wings of Eagles by Ken Follett, which became a best-seller."

Perot's philosophical wrestling on the issue of "legal" vs. "privatization" probably boiled down to "just do it."

As soon as I read reports of part of the majority opinion, invoking the obligations of the Geneva Conventions, as part of the reasoning behind the decision, I was struck by one small matter: Are not treaty obligations such as this reciprocal? If there is not reciprocity (and indeed in the case of BOTH the non-state jihadist groups AND their state sponsors AND all Muslim nations)then how are we obliged? We oblige ourselves? We can only oblige ourselves under our own laws. Therefore, this matter of logic seems to have eluded the mental gyrations of the legal minds involved.

Obliging ourselves is a matter for Constitutional interpretation and legislative fiat.

I have no idea. Or rather I do have an idea, but not the sort informed by legal training, where precedents are like theorems used to prove other theorems. The fact it is USSC judgment means the legal reasoning is formally plausible; but more importantly that it is binding. However it may be the matter now enters the political process, where common sense and reasons of policy are now admissible. And it is there we can reason with confidence. There we are out of the lawyer's woods.

Ultimately the political system must ask itself whether the outcome of Hamadan makes sense and to what degree. This will compel the debate to examine first principles. What does humanitarian law intend to achieve? What are our war aims? How risky is too risky? And how shall these competing factors be resolved?

In the ensuing process, International Humanitarian Law will descend from its godlike status to become just another subject under examination. Suddenly we will recall that men wrote it; men no wiser than ourselves, and in other times. It's sacerdotes will sense the peril and try to take it off the table by reascending it to heaven. But just as Mars upon the plain of Ilium became vulnerable to Diomedes, so too will people have to answer the very question you asked: what sort of agreement can you have without mutual consent?

Ah, the chickens are coming home to roost. The War that sent POW's to Iraqi Civil Courts, oh wait, they really weren't POW's or were they?

Only Justice Souter knows for sure.

A War with no defined enemies, that demands writs and warrants for detention, that does not allow US Marines to return direct enemy fire, is not a historicaly normed war at all.

But while POW's do not have to be taken to Court, they can be held indefinately, they must be held under different rules.Phone calls home and letters, Red Cross visits, it'll be grand.No more holding detainees incommunicado. What a deal.

An occupying power may sentence civilians to death if they are guilty of serious acts of sabotage — but only if these offenses were punishable by death by local laws before the occupation began. (Convention IV, Art. 68)

spies

Combatant who are captured while spying do not have the right to prisoner of war status unless they were wearing their military uniforms. (Protocol I, Art. 46)

civilian

A civilian is any person who does not belong to any of the following categories: members of the armed forces, militias or volunteer corps, organized resistance movements, and residents of an occupied territory who spontaneously take up arms. If there is any doubt whether a person is civilian, then he or she is to be considered a civilian. (Protocol I, Art. 50, Sec. 1)

civilian status

Feigning of civilian or non-combatant status is perfidy and prohibited by the Geneva Conventions. (Protocol I. Art. 37, Sec. 1)

combatant status

Combatants have protections under the Geneva Conventions, as well as obligations.

Convention I offers protections to wounded combatants, who are defined as members of the armed forces of a party to an international conflict, members of militias or volunteer corps including members of organized resistance movements as long as they have a well-defined chain of command, are clearly distinguishable from the civilian population, carry their arms openly, and obey the laws of war. (Convention I, Art. 13, Sec. 1 and Sec. 2)

However, other individuals, including civilians, who commit hostile acts and are captured do not have these protections. For example, civilians in an occupied territory are subject to the existing penal laws. (Convention IV, Art. 64)

The 1977 Protocols extend the definition of combatant to include any fighters who carry arms openly during preparation for an attack and during the attack itself, (Protocol I, Art. 44, Sec. 3) but these Protocols aren’t as widely accepted as the four 1949 conventions.

In addition to rights, combatants also have obligations under the Geneva Conventions.

In the case of an internal conflict, combatants must show humane treatment to civilians and enemies who have been wounded or who have surrendered. Murder, hostage-taking and extrajudicial executions are all forbidden. (Convention I, Art. 3)

For more protections afforded the civilian population, see civilian immunity.

Although all combatants are required to comply with international laws, violations do not deprive the combatants of their status, or of their right to prisoner of war protections if they are captured. (Protocol I, Art. 44, Sec. 2)

A mercenary does not have the right to be a combatant or a prisoner of war. (Protocol I, Art. 37)

Even a redneck like me can see that the Geneva Conventions will not work for the long war we will be engaged in for the next several eons. It either needs to be discarded or completely revised to include and specify treatment of non affiliated, non government, "combatants", in a undeclared war, with undeclared combatants, who are civilians one minute and murderers the nextLINK

The good news here is that counting the chief, who had to sit this case out, there are four out of nine solid votes in favor of the troops and the law, and this decision was based on laws, not the constitution, so it can be over turned by Congress.

I think you'll see, that in a manner not unrelated, multinational corporations and related entities are spending more on 'security' than they were prior to 9/11. I would even go so far as to suggest that this expenditure indicates that they don't believe governments can provide for them the level of security they've grown accustomed to. Wasn't that, on some level, one of the main lessons of 9/11? That you couldn't depend on the government to protect you?

So you have the development of military/security companies to a degree unprecedented in recent times. I would even go so far as to say that yes, they are more efficient in certain aspects. But my reading of classic history is not very happy with the idea of unaffiliated armed workers of ambiguous ties running around the globe. It seems like an eventual mercenary situation, although I don't believe that it's this way at the time.

Anyhow, uniforms- there was a day when uniforms meant something. But the only way to do that is to punish those who don't wear one. This decision is very damaging in that aspect.

Thank you for that very well-thought reply to my question. It's eloquence is actually more far-ranging than the points of a legal brief that may have been used by either the defense or the plaintiff in this case. Lawyers generally do not see the Big Picture. They are paid to avert their gaze.

desert rat is quite correct to raise the point that we get what we deserve when we do not clearly define an enemy and get a Congressional declaration of war. I saw this clearly back in '01 and knew we would rue the day this path was eschewed. I knew the ACLU Communist wolves were gathering their pack for the hunt. If you expose your neck in an environment where there are predators, why be so shocked when your head is severed from your body?

Meanwhile te Muslim Brotherhood assails Egypt's government for not assisting the Palistinians.Says that the Pharoah is afaird of democracy and freedom.

"... The leader of the Muslim Brotherhood accused Arab leaders of being impotent.

"We haven't heard even a whisper from you," Mohammed Mahdi Akef said. "You can't provide medicine and milk and the necessities of life to our besieged people in Palestine .... You take a hesitant stance toward their freely elected government, fearing the spread of the virus of freedom to your own fertile pastures." ..."

Besides the declaration of war, I wonder sometimes if Bush would have been better off declaring them POWs and using Geneva Convention right from the start. He could have used already approved tribunal rules, like from Vietnam. That way there would have been no need for the courts to butt in.

Tough interrogations still could have happened like they do in every war, and some brutal enemies get killed instead of captured.

I foresee that one of the consequences of the mindset that has led to this kind of decision will be far less incentive for our combat forces to give the enemy a chance to surrender. We may end up being far more selective about who we capture and detain. Our rules of engagement may have to change, and it will mean shoot first and ask questions later. Unless the enemy is clearly, unequivocally waving the white flag, they are goners.

Wretchard...great question...what prevents those of us who are well trained, to take matters into our own hands, when two branches of our government, the press, our educational system, and a large percentage of the oppositon party have neither the will to defeat the emeny, nor the cognitive ability to recognize the threat that we face, and ultimately fails to give us the protection that we need? The SCOTUS decision today clears the deck for independent action by independent citizens to act on their own behalf to defend themselves without restraint, and risk nothing more than they do today...being treated brutally at the hands of a godless enemy that has no civility, and recognizes no law, and is not bound to a toothless international agreement that has proven its worthlessness time and again over the last 50 years.

We WOULD be better off fighting as independent contractors, than to fight under the flag of a spineless government that lacks the will to press for victory over a ruthless and deadly enemy. Gads...how did America to this point?

I do rest easy knowing the GWB has his eye on the ball, and that our troops take their tasking seriously, regardless of how cavalier their sacrifices are being treated by the rest of the government.

Today's decision lacks a thread of the spirit that used to make America great...it is a harbringer of our demise, and the sure sign that we are weaker willed as a nation than we have been in the entirety of our history. God help us. MM

According to Mr Biden, who stands as an authority, and Mr Specter, the two Authorizations, 14 Sept '01 and the Iraqi, are both Declarations of War. They fulfill evey legal requirement of a Declaration.

The Bush team has not marketed them as such. Mr Bush does not promote the "legalities" of the War in his speaches. Neither has his Team. They have always been behind the curve in that area.

They have managed to combine the Iraq Campaign with the GWoT in most peoples minds, they are now "one and the same" to most folk.

The Administration references again to 9-11 and how victory in Iraq will be against the terrorists that would have attacked US here. But little reference to the Islamic Courts taking over Somalia with an Osama Lt. in charge.Or the aQ and Takiban training camps in Pakistan.

The original Global War on Terror is not referenced much at all, really, in public discourse or debate.

Osama just cut and released another video, eulogies for mini Z they say.

You brought a smile to my face with that observation. The Democrats will be forced to vote on a whole bunch of things that will put them in a very difficult political decision. They are rapidly losing control of their entire political agenda.

The Supreme Court may have finally met its match as well. If the Republicans are smart, a massive leap of faith, they will sieze the moment and design a law that will undercut this decision. They should use it as a precedent to reassert the role of the legislature and force the court to review law instead of making it. This requires some deft action which I doubt is there.

This is a startling luxurious waste of time and focus. It reminds me of the scene from the tedious movie, "Titanic" where a crew member is taking a cash bribe to arrange access to a lifeboat. It finally occurs to him that he will be drowning with a lot of cash.

Where would the financing come from? How would it be organized? How would the “hit committee” make its decisions on whom to kill? How would the organization guard against infiltration?

The fact is, Islamist organizations have a level of institutional power our non-state actors generally don’t have. Except for churches, but they are not allowed to stockpile weapons. Just look at what happened to the Branch Davidians…

True, in a civilized state there is a monopoly of violence. However, we don’t merely live in a civilized society, but a socialized one. And socialized states simply don’t have the kind of non-governmental networks necessary to fight an effective non-state war. For example, we’ve gone from volunteer fire departments to state controlled fire departments. It makes a difference how easy it is to organize people.

Before Social Security, American men organized themselves in fraternal orders. Some of them still exist, but they don’t have the same power they used to. One of the major reasons men joined fraternal orders is not merely for the camaraderie, but because it functioned as life insurance. If a brother died, his order would help support his widow. Think of the Masons, the Oddfellows, the Knights of Columbus, and so on.

Of course, it wasn’t all wonderful. An entire political party was started in opposition to the Masonic Lodge. The Mafia was a criminal brotherhood. Chinese brotherhoods often double as street gangs. And the most notorious fraternity of all was the Ku Klux Klan, the one organization most fundamentally similar to al-Qaeda we’ve had in this country. And of course, fraternal orders generate conspiracy theories. (One of the reasons why conspiracy theories are so popular in the Middle East is because so many people are involved in a conspiracy themselves that they assume everybody else does what they do.)

It’s very easy to talk about relying upon non-state actors to fight this war, but creating institutions with the organizational power to finance warfare, train to kill people, conduct operations, all the while maintaining institutional control over its membership – that’s a tall order. (Should we try financing wars the way politicians finance political campaigns…?) Worse, try figuring out how to do all this without getting the FBI on your tail and finding your face splattered all over the New York Times as a terrorist supposedly more dangerous than Osama bin Laden.

Firstly, let's not lose sight of the fact that there would not have been a SCOTUS ruling and we would not be having these discussions if the Bush administration had sought to work with Congress and the Courts -- and not in secret or against those bodies -- to fashion appropriate responses to the unprecedented threat posed by Al Qaeda and other terrorist groups in the new millenium.

Secondly, the people on this blog and elsewhere who think that the Hamdan ruling gives Al Qaeda a go-free card and are compelled to put everything into a Righteous Right vs. Left perspective need to take a deep breath and empty their drool cups. You're getting in the way of serious discussion and I'm tired of sloshing through the mess you leave.

Thirdly, Chester hits a very big nail on the head when he states that Hamdan is a turning point in the application of war conventions and treaties and implicit in that is that soverign states that play by the rules are most vulnerable in the face of non-state organizations that don't.

My view is that for the time being we're stuck with our conventions and treaties just like the police are stuck with their rules and regulations even when going against the most depraved serial killer. As Wretchard notes, privateering is not desirable, but it may be inevitable.

My fervent hope is that there can be new legislation that holds up to legal scrutiny while taking into account the unlevel playing field in the War on Terror. That is a tall order for legislators more intent in pandering to their base with amendments banning same sex marriages and flag burning. I am reminded of what Pogo said: "We have met the enemy and it is us."

Where could private, conspiratorial organizations in the West come from? Gangs; ethnic expatriate organizations; left and right terror-type groups; fanatical and unbalanced but wealthy men. People who know how to move large quantities of money around; fund research institutes; endow medical centers; people who have strange, crackpot religions. There are only a handful of people in Muslim countries with truly impressive technical qualifications. But there are millions in the West which has many private organizations far more technologically advanced than the state science establishments of poor countries. Expertise and money is abundant; it's only the hate that's missing.

Once hate is supplied then the "fire triangle" is complete. Who will induce the hate? Perhaps the Islamists themselves unless stopped. Who will suppress the hate? Why the West itself. No one else. Consider the lengths to which the British and French, for example, go to suppress any outbreak of anti-Muslim sentiment, which would be a real danger if it got going; so great a danger it would be like fire on a ship.

But fanaticism can only be contained for as long as populations believe their governments can provide justice. If a tipping point is reached, enough people start to lose faith in the system that they take things into their own hands. What Western politicians must avoid at all costs is giving the impression they have sold their populations out. Give a country five years of the hard left and they will be ripe for a demagogue from the hard right.

It was the OAS that came closer than anything else to toppling de Gaulle. What was their cry? Betrayal. Such a group would be even more powerful today boosted by technology to the same degree it has inflated al-Qaeda. Should such a group arise and strike ordinary and innocent Muslims, for example, it could set off a spiral of revenge from which there would be no recovery.

Civilization rests precisely upon retaining the monopoly of violence in well-controlled and accountable hands. To the extent Hamadan keeps the police agencies accountable it is good; but to the extent it provides the perception of granting aid and comfort to the enemy and grants the nonstate al-Qaeda legitimacy it is dangerous. Where there is one, there will eventually be two. It's the role of responsible politicians to keep the canoe in the middle of the stream. Did I say responsible politicians? God have mercy on us all.

Fair enough. But the problem I think was far less "secrecy" than a failure to supply new institutions where the old no longer sufficed. Consider Guantanamo prison. Apparently, Gitmo is the most monitored prison in history. It has a permanent Red Cross presence; they even have a trailer; 1000 media, 145 Congressional, and 2 European visitors delegations have visited it and it has a total of 797 prisoners. OIF at least, has Congressional authorization, more than Kosovo and Vietnam could claim, though the consensus for the larger War on Terror surrounding OIF is less clear cut. It's funny how the most legally legitimate parts of the GWOT are the most contentious.

But in a larger sense I believe you are right about GWB's curious lack of constructiveness. By this point in WW2 or the Cold War Roosevelt and Truman had built institutions to carry their far more lethal agendas forward. The UN, NATO, MAD. Can you imagine anything madder than MAD, now hallowed by the patina of nostalgia? In contrast, GWB seems to have simply taken his authorizations and gone off without explaining himself. And while GWB has no interned Japanese, Secret Doomsday projects like the atomic bomb, no Dresdens or Nagasakis lurking in his closets; while he hasn't "lost" Eastern Europe or China like FDR or Truman did, he gets worse press because he has not adequately explained himself.

Perhaps GWB's greatest historical failing is his inability to mobilize institutions the way he can sometimes mobilize people's sentiments. He was not bureaucrat enough for the job. European journalist Alan Posener recently wrote that by any standard the greatest empire builder extant today is the European Union, which is expanding like the Blob. America in all of GWB's term has not expanded its territory a single inch. Maybe even lost some to Mexico.

But I think it would be unfair not to point out that the Democratic Party isn't exactly champing at the bit to work on the prosecution of the war. Senator Lieberman's troubles are partly proof of that. Plans to defend Iraq from Okinawa and withdrawal schemes which are actually more extreme than those proposed by Iraqi insurgents are probably all that have kept GWB viable. The polarized political spectrum was both GWB's salvation and his curse. And when his term ends we'll be left not with the 'infrastructure of fascism'. We'll be left with the same old institutions that his predecessors created and the memory of a ride into the night and a glowing, but faded dream.

Wu Wei - Justice Kennedy is the fifth and tie breaking vote. He's a mostly conservative judge who only signed on part of the majority decision, and wrote that he was just following the law as written.

Kennedy is not really a conserative justice anymore. He has "grown" like Souter and O'Connor into what might best be described as the "moderate Northern Democrat" viewpoint. Only surprising, like O'Connor (in Kelo), for occasionally reverting to a conservative stance after taking the liberal side in several decisions.

Worse, Kennedy is increasingly in the "Cosmopolitan Jew camp" occupied by Breyer and Ginsburg, which appears to hold that national loyalties are not so important anymore, humanity is "progressing" past national law to international law and NGO experts steering societies best instead of national Constitutions, and Europe is on the cutting edge of such desirable transnationalism.

Breyer, Ginsburg, and Kennedy are notorious for devoting their summer vacations mostly to being in their favorite Euro hangouts to touch base with their Euro judiciary counterparts to discuss the latest intellectual consensus.

Like Scalia, I vehemently disagree with the internationalism of the 3.=======================

Wu Wei - We gave the Nazis POW status in World War II, along with Japanese who potentially could be suicide Kamakize bombers.

That almost sounds like a non-sequiter without the context of the thread. I presume you are saying that Nazis=Al Qaeda, Kamikazes=suicide bombers, ergo, Al Qaeda has cause to be considered the same for POW status.

The fallacy is that in it's war with the West, Nazis generally adhered to Geneva and gave POW protections. It was far more brutal in the East because the Soviets had refused to sign Geneva. Captured Allied servicemen where not shown on moviereels in Berlin theaters getting all their heads chopped off to chants of "Hitler is great!". Instead they were generally protected. No American soldier with the horrible luck to be captured by an Al Qaeda Islamoid doubts what will happen to him. The kamikaze parallel is even more striking in being no parallel at all. Their suicide pilots struck only military targets, not skyscrapers or marketplaces full of "heretic Shiites" or "filthy Jews".

I hope you are not arguing for POW status of Al Qaeda based on WWII parallels to uniformed combatants, are you?

All of your points are well taken, and I did not intentionally omit mention of the clueless Democrats. In fact, had they acted as a true Loyal Opposition over the years they might have forced GWB in the direction that he now appears compelled to go because of the Hamdan ruling. So feckless have the Dems been that they have helped bring out the worst in GWB. I believe that's called enabling in substance abuse circles.

As an aside, week in and week out I probably link to Belmont Club from my blog (Kiko's House) more than any other. As noted, I'm not in league with the drool cup crowd, but I find your commentaries and the comments of many of your visitors to be well above the din that passes for discourse in the blogosphere.

And you have a regretably rare trait that I value: When confronted with new information, you are not afraid to change your mind. Thank you.

One other thought: It is a beautiful morning here in the Middle Atlantic area of the U.S. following days of rain. I went for a bicycle ride after my initial comment and neglected to mention in my second comment that for me what all of this is about is trying to make the U.S. and the world a safer place for my family and other loved ones and to insure that I'll always be able to take those sunrise excursions until I'm too old to grip the handle bars any longer.

I'm not a dewy eyed dreamer. I was in a war and covered a couple of other wars as a journalist. This is not about who is righteous or wrong or smarter or dumber. This is about doing whatever it takes -- within a legally sound framework -- to keep those beautiful sunrises coming.

"If this is the case, then we have the answer to the war: it will be privatized, and its ultimate victories won by uninhibited private military actors, not the hamstrung citizen militaries of nation-states."

Wretchard,

In reading this, I was immediately taken back to reading Philip Babbit's Shield of Achilles -- is this not in line with his predictions relating to what he calls "Market States"?

And does this mean not only POW status for such crimminals but also that Posse Cometius does not apply? Can the FBI or even local police corner them and call in an airstrike?

Fred: I think you are dead right. Shoot to Kill will be much more popular than Catch and Release or Catch and Keep. And that means that collateral damage will go up; treating terrorists nicer will mean treating innocent civillians worse.

The Nazis took months to torture some people to death in "medical experiments". That puts them in a class with Al Qaeda.

I do support putting Al Qaeda in POW status, because POW is bad, and there really is no other category. There's nothing worse than POW other than criminal, and it takes time to get there and it needs to happen one by one after trials. So when captured the Al Qaeda get called POW, they get a trial, then if convicted are executed or put in jail. Some of them are returned to their home country to get tortured. Of course, some will never be captured, but will get instant justice from our troops like Zarqawi, which may be the best option.

I don't understand why POW status is seen as being a privilege or a reward, something which is good. We called Hitler's henchmen who did "experiments" on pregnant women and their fetuses "POWs" (until we called them murders and hung them). If Hitler had lived we would have called him a POW. We're fighting a war against terror, against Al Qaeda, so if we captured bin Laden I don't see what would be wrong with calling him a Prisoner Of War.

Henry Paulson has been Communist China’s Armand Hammer. In fact, he has been vastly more effective than Hammer ever was in promoting his clients’ interests and enabling their access to Western economic assistance and high technology.

Under Mr. Paulson’s leadership at Goldman Sachs, the company has been instrumental to the growth of Chinese economic power and particularly to its penetration of Western capital and other markets. He has been directly involved in developing his firm’s relationships with the PRC, priding himself on having made 70 trips there since late 1991. Consider just a few of the deals Goldman has managed, underwritten or otherwise facilitated under Henry Paulson’s leadership:---It is unimaginable that during the Cold War any president would appoint — let alone that a majority of senators would vote to confirm — a man like Armand Hammer as secretary of the Treasury. Now President Bush has nominated his Chinese counterpart.

"Worse, Kennedy is increasingly in the "Cosmopolitan Jew camp" occupied by Breyer and Ginsburg, which appears to hold that national loyalties are not so important anymore.."

Actually the true universal church is the Roman Catholic, founded by a very non-cosmopolitan Jew, but accepted by the gentiles. The same church became the foundation of Western Civilisation. That same civilisation has a common goal fo defeating the un-civilisation of radical Islam.

I find myself having great differences with countries such as France over various issues. When that happens, I do not consider their Catholocism to be the problem. There are serious dedicated right thinking Jews, some of whom blog on this forum. Surely you do not imply they are in this camp you refer to and if you strike the Jew comments from your comments there is little difference between their views and most of yours.

We all learn on this blog. I learn from you. Open your heart and your mind.

Once hate is supplied then the "fire triangle" is complete. Who will induce the hate? Perhaps the Islamists themselves unless stopped.

This is what really fills me with dread, and why I feel the attempt to reform the middle east, despite hardships and mistakes, is worth it. It is an attempt, maybe futile, to prevent the unthinkable.

We can't imagine now the circumstances where private citizens or groups launch their own wars, but we haven't seen the worst yet, have we?

London, Madrid, even 9/11; do we really think this is the worst that will come?

Imagine, if you will:

-that Paris dissolves in a blinding flash -a manufactured plague sweeps Britain -large amounts of Ricin make it into the food supply of Canada -Several Beslan-style school attacks occur simultaneously in the United States, with thousands of children murdered

Forget the false-hope contained in the low probability for any of things, or something like them, to be pulled off. The fact is, given enough time and latitude, a terrorist group will succeed in something like the above.

When they do, the survivors and many of their fellow citizens will demand action. If action, decisive action, is not taken, people will decide to take action themselves. Some will react blindly and lash out, others will perform more calculated actions, but it does have possibility to take on a life of its own.

What then what does a government do? Fight the tide and become viewed as selling out or weak, or ride the wave to even higher acts of brutal response?

The Islamists are preaching our wholesale destruction. When:

1-Enough people realize they mean it 2-They demonstrate the ability to bring it about

They WILL fight back, with whatever means they view necessary. Can you blame them?

Wretchard,The US has a history of using non-US forces to accomplish what US forces are not supposed to be fiddling with. For example, the Contras against the Nicaraguan Sandinistas, the Afghans guerillas against the Russians.

If somebody paid the Kurds to engage in some payback against the people who killed their families in the Sadaam days ...fbbtxef

Even better than mercenaries are factions, our surrogates who will fight for us within their own country. We have the Kurds and (less reliably) the Shiites in Iraq, as we have the Northern Alliance in Afghanistan.

It's our version of asymmetric warfare. Our local friends are immune from entangling US laws and liberal pressures, and are also the ones with actionable intelligence information. We provide the military power and modern weapons. I think the classic example is how the combination of Northern Alliance / US Special Forces / US bombing cut through the Taliban like a hot knife through butter. Shortly before that Ted Kennedy had been squawking about a "quagmire" in Afghanistan, but once we applied that formula the Taliban collapsed like a house of cards.

This too, is a sentiment in Bruce Bawer's "While Europe Slept". He worries that the governing institutions in the EU and in the national bureaucracies are so filled with hard leftists that the populace knows that its true interests are not being represented, and are therefore extremely susceptible to fascism in some new form.

Clioman,

Yes -- of course, this discussion was predicted by Philip Bobbitt in The Shield of Achilles. Published in 2002. I know I sound like a shill, but there are few headlines that SOA is not relevant to interpreting, or even predicting in many cases.

The other day, ABC news started the evening news with a teaser about a solved mystery of eighty soldiers lost on a US submarine sixty years ago. Later in the report, someone must have pointed out the difference between a sailor and a soldier and the correction was made but not noted.

There is a growing disconnect in that so many of the press, academics and political leaders have no military experience. The volunteer army has been hyped and the former draft situation so disparaged, that there is no serious effort to contemplate the return of universal military service. American society would be better served witha draft system with no exemptions. A little more "us" and a little less "them" would be helpful.

" So when captured the Al Qaeda get called POW, they get a trial, then if convicted are executed or put in jail."

Wait... I think I'm misundertanding something. I thought one of the reasons everyone didn't want to call captured terrorists "POWs" (or, isn't it now "EPW"? "Enemy Prisoner, War"?) was that the status specifically prohibited trials. I thought there was some language in the GC that said you cannot be prosecuted for being a participant in a war. If that's the case, how does POW/EPW status allow for trials of captured Al-Qaeda?

This supreme court decision is blow back from decades one worlders undermining state institutions. When you have no borders all guns have equal authority.

The role of a warrior/soldier is to be the defender of the boundary. But if there are no boundaries, then the soldiers of the nation state are on par with drug armies.

Man its so important that the middle and lower classes of the world take back their respective upper/ruling classes of their own countries. The rich have been doing way too much fraternizing/identifying with each other to the detriment of the humanity.

"... This time Putin has made it very clear: he wants the people on the tape - and their sponsors - dead. ... ... the Interfax news agency reports that Nikolai Patrushev, director of the Russian Federal Security Service (FSB), said that everything will be done to ensure that the killers "do not escape from responsibility." Patrushev added that "this is not some random plan; this is a very clear order from the President which goes along with what we do here."

"The President has ordered the special forces to take all necessary measures to find and destroy the criminals who killed Russian diplomats in Iraq," the Kremlin press service said in a brief statement. The terse and direct nature of Putin's words spoken in front of a visiting Muslim dignitary ( Saudi prince Salman bin Abdul Aziz al Saud ) goes along with the Russian tradition of doing things.

The president of the Group Alfa Veterans Association, Sergei Goncharov, said that "Russian forces have the knowledge and ability to find and kill the murderers in Iraq". The Alfa Group is an elite anti-terrorist squad that ended the Beslan school massacre in 2004 and the Moscow theater siege in 2002. However, this quasi-private unit has also proven its ability to expertly employ violence in a political crisis.

In 1993, with Russia on the verge of civil war, President Boris Yeltsin hired Alfa commandos on a private basis to disperse thousands of heavily armed protesters who were supporting the rebellious Communist Parliament. What the regular army and police units (many had defected to the rebels) couldn't do in several days, a 50-man Alfa team accomplished in 15 minutes, dispersing the mob that had stormed Moscow's most important TV tower. One of the commandos was killed by a rocket propelled grenade fired by rebels inside the tower. After a night of fighting in the streets, Moscow morgues were filled with the bodies of hundreds of the rebels. Thanks to the Alfas, Yeltsin secured his government against a Communist coup, but at a high price...."

Private Armies and Warlords are nothing new. As w.w. noted factions and non-State actors, as well. The Romans used them extensively, as did the Brits in their own fashion. The Mongols as well.

We now enjoy the fruits of our Salvadoran proxies in the form of MS-13. Unforeseen consequences, as it were, as well as false economies sometimes lurk in the shadows.

> I thought there was some language in the GC that said you cannot be prosecuted for being a participant in a war.

I don't think that being a POW is a pardon for any crimes. The decision about that comes in court.

A POW is not necessarily a soldier, and even if someone is a soldier they can still be punished for war crimes like shooting civilians and torture.

The reality is that someone might be a soldier one hour and a terrorist the next (by stripping off their uniform and using criminal tactics). So POW status can't address that. It needs to be sorted out in court on a case by case basis.

From what I read in the Geneva Convention, even if someone commits violations they don't lose POW status. I couldn't find any other status in there other than POW, besides "spy" and it isn't even clear if that is a totally separate category.

I have a question for the legal minds out there: how would the Geneva Convention, or any Westphalian-type treaty, which deals with the rules of war between nation-states, deal with colonial powers fighting barbarian natives? Zulus and Apache are not going to appear on the battlefield in uniform, and are not going to be aware of, or subscribe to, the treaty of Westphalia.

Again, how did the United States clear out the Barbary Pirates? Pirates are regarded (so says Blackstone) as common enemies of mankind "hostes humani generis". Since the times of the Romans, no legal excuse, no cause of war, no declaration of war, was needed to make war on Pirates: they were simply killed where found, it being supposed that they had already by their piracy had committed sufficient acts to show them as the enemies of all nations, and against all flags.

Surely the Jihadist is in the like posture as the Pirate. He has declared war on the world. Like the Pirate, he wears no uniform, he flies no colors, he is due no consideration.

Surely there is sufficient legal precendent in this line of reasoning to apply to the Jihadist? Does anyone here know the international law in this area?

Gang rape and murder in Iraq.Raped an Iraqi womanKilled her and then three othersBurned her body

"... one of the soldiers, all assigned to the 502nd Infantry Regiment, has admitted his role and has been arrested. ..."

Same unit as those three enlisted men left with a humvee to secure the side of the road, all three KIA, two butchered like hogs.

"...At least four other soldiers have had their weapons taken away and are confined to Forward Operating Base Mahmoudiyah south of Baghdad. ... ... the killings appear to be unrelated to the kidnappings but that a soldier felt compelled to report the killings after his fellow soldiers' bodies were found.

The killings appeared to have been a "crime of opportunity," the official said. The soldiers had not been attacked by insurgents but had noticed the woman on previous patrols. ..."

Bet those four Iraqi folk wish they'd beem treated like POW's.Caught and released

What I think might be an instructive excercise here is to look back in history. Although Islam has technically advanced farther than the Middle Ages, its world view is still in many ways stuck there. The Geneva Conventions were a result of the evolution of Western Warfare from the Middle Ages to what it is today. The problem is that while we (the West) are operating in this century, the Islamists most assuredly are not. This is highly evident in even their language, if not some of their means. The Geneva Convention was meant to encode the conventions that Western Warfare had come to use. This encoding and standardization would provide a universal guide for how to avoid getting hurt in a war that you were not responsible for and did not want to or could not fight: IE Civilians. These protections were agreed upon because after the tumult of religious war and its destructiveness in the Middle Ages, almost all parties realized that to go further along this path would assure the mutual destruction of all involved, and that nothing was REALLY worth that. This is an idea seen within the structure of our own democracy and many international institutions. Problem is that the Islamists don't have that point of view. Their destruction and ours don't really matter to them, and therefore fall outside the Conventions context since they are A) using a point of view centuries prior to it, and B) don't even respect it anyways. The Convention was meant to discourage this behavior- in fact to quash it with the definition of Perfidy which permits a quid pro quo savagery. You can even refrence past wars to this, for example the Philipines, which I know Wretchard loves, where all sorts of acts were committed. It was considered somewhat nauceous to do, but perfectly legal since the Conventions really didnt apply given the nature of the fighting. This is something that even TR recognized who really could be considered the grandfather of American Internationalists, although todays are a perversion of what he thought. The COnventions were meant to reward their observance and punish their transgression- as laws that actually mean something do. If the Supreme Court is going to disagree, well, then I would think that the Conventions are null and void. Besides, what authority enforces or regulates them anyways? None other than ourselves and the opposing power in the conflict, which well, doesnt even really exist. In this case then it calls for new regulations and standardization which do fit the original intent of the COnventions which the Court can't really either A) understand or B) wish for clarification upon. Or perhaps the Court wishes for an entirely new set of codification that can replace the somewhat ambigous Conventions. Either way, as the remaining superpower, International Law, like the Law of the Sea, is really what we and the majority of people with power can agree to since we are the ones who can enforce it. Without enforcement laws are meaningless, so the Convetions then it might be said are already meaningless since they are only so selectively enforced given their current court given context! Soemthing with rewards and penalities needs to be set up and enforced therefore to deal with transgressions of what are commonly regarded goods by the West in order to force Islamists to abide by them. Of course they could care less, but as a bad dog learns, you operate by our laws, or you get the stick in the form of retaliation that you can't handle. Eventually they will all be dead, or they will learn to deal with us and respect our power, because that's all they have demonstrated they can respect right now. People need to just realize that so we can gaggone whip it on! ( as the good gunny says )

About the pirates, my understanding, which may be incorrect is this: it goes in two phases. During the first phase when the pirates are committing their crimes, basically the situation is "surrender or die". The forces of law can kill them at will.

Once the pirates, rebels, whatever surrender, then they are supposed to be covered by Geneva Convention article 3, which basically just says keep them alive without torture, then give them a trial which has at least bare bones fairness.

Just a reminder that the actual ruling in Hamdan has nothing to do with the POW status of detainees or even the military tribunals that determine if detainees (not just in Cuba) are POW or 'illegal combatants'. Only that 'illegal combatants' cannot be tried for war crimes using the method Bush set up.

The kicker is the strained reasoning that the SC used to decide that Common Article 3 of the GC applied to AQ. What a perfect example of the believers of a 'Living' constituion VS originalist/textualist.

It's not an really an issue of whether Article 3 *could* be read the way the majority did, but of *should* it be read that way.

Judicial restraint, not can you but should you.

Also, up until now, the SC has stayed out of enforcing international treaties, leaving it up to the executive.

In the past the other Branches felt the Executive was enforcing the Law. This view may have a vanishing constituency, amongst those embedded in the Washington power elite. The Supremes included?

Some see it at the Border and Immigration Laws, others see it more expansively."... the authority to revise or ignore more than 750 laws enacted since he became president.

By using what are known as signing statements, memorandums issued with legislation as he signs it, the president has reserved the right to not enforce any laws he thinks violate the Constitution or national security, or that impair foreign relations. ..."

"...Senator Arlen Specter, the Republican of Pennsylvania who is chairman of the Judiciary Committee, on Tuesday characterized the president's actions as a declaration that he "will do as he pleases," without regard to the laws passed by Congress.

"There's a real issue here as to whether the president may, in effect, cherry- pick the provisions he likes and exclude the ones he doesn't like," Specter said at the hearing. ..."

"There's less here than meets the eye," Cornyn said. "The president is entitled to express his opinion. It's the courts that determine what the law is."

:)

If I remember, signing statemants were/are in important part of the NSA/FISA constitutional arguement. When some trotted out previous presidents signing FISA into law, thier signing statemants make it clear that they signed the bill with the understanding that FISA did not supercede the presidents authority on National Security and Foreign Affairs.

The Supreme Court broke the law by deciding that case at all. The law, the DTA, said it was out of their jurisdiction. The Constitution clearly gives Congress the ability to limit that jurisdiction, and during the Civil War, the Supreme Court respected it.

The Judiciary Committee should hold hearings to force justices to explain why they disobeyed the law. If the answers are unacceptable, then impeachment proceedings should begin.

It's not a joke. The lives of our troops and civilians are at stake. We can't afford to let a Warren Court and the New York Times decide the fate of each Al Qaeda prisoner.

Problem is that the Islamists don't have that point of view. Their destruction and ours don't really matter to them, and therefore fall outside the Conventions context since they are A) using a point of view centuries prior to it, and B) don't even respect it anyways. The Convention was meant to discourage this behavior- in fact to quash it with the definition of Perfidy which permits a quid pro quo savagery.

I'm not so sure I agree with you that "their destruction and ours don't matter to them". They desire it. Islamists seem to take the attitude of the Albigensian Crusade -- "Kill them all; God knows his own." In modern times, rape is regarded as a war crime. During the Middle Ages, it was a reason men would go to war in the first place. The Ottoman Empire never stopped regarding rape as a "casus belli", so its cultural sphere was not affected.

Without enforcement laws are meaningless

Like the Catholic Church in the late Middle Ages? Unenforceable laws may continue not to be enforced, but continued loyalty to unenforceable laws can continue for centuries while the rot progresses further through the body politic. Indeed, while the Pope's decrees were routinely ignored, the Papacy was able to effectively stamp out overt heresy. The net effect was malaise.

My fear is that our government (and other institutions) will be too weak to defend us from the terrorists while being strong enough to prevent any effective response against the terrorists. Dog in the manger.

Another one showing how the Court didn't have the power to make this decision because Congress took it away, they broke their own precedents once they made it, and they don't have the wisdom to make it properly.

This case brought before the court encapsulates pretty much the mindset of the DhimmiCraps and the Hard Left. For them, there is no war to be fought. To them, we are dealing with organized crimminals who have to be cut some slack and forgiven for their righteous role in effecting "blowback." Thus, we need, according to those folks at the ACLU and National Lawyers' Guild, to approach this problem in the manner that a regulated police investigation proceeds, with all of the constraints implied.

This perception is execrable. It is going to get more people killed and enable our enemies to wage war with all of their tools while are reduced to the status of Inspector Clouseau.

Did the Supreme Court ignore laws passed by Congress that no US Court could become involved in Guantamo judicial processes? It is being said by many that SCOTUS simply ignored those laws? We need to know the answers.

Another issue that bothers many people is why did Breyer choose to assign Article 3 status (conflicts of a non-international nature) The answer is that the detainees would receive the more extensive protections of a civil trial rather than the Administration's proposed Military Tribunal.

Another question I have is: If Congress did pass the Legislation prohibiting US court intervention what is Congress going to do about it. Will everything be swept under the rug as the Executive and Legislative branches defer to a usurping, activist court?

The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.

Article 2

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof."

There is no problem with the Geneva Conventions on this issue. There is on ly a problem with the Supreme Court. Namely, why it takes a person merely literate to read a document, but they either cannot handle it, or are intellectually dishonest.

This isn't going to have any international effect besides handicapping the US. The Supreme Court is so obviously wrong that noone's going to turn to them for guidance. The Europeans are going to follow the Conventions as they were intended, namely to provide an incentive for everyone to follow them by limiting its protections to those who do, the rest of the world mostly did not follow them as it was and still won't.

Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider...

Section 1005 lays out the details, I will call them X, Y, and Z. The DTA in Y and Z expressly state that it applies to 'pending' cases (Hamdan). Part X does not use this language. The Hamdan case deals with part X. Congress made no mention of 'pending' for X.

DTA applies to all future cases, but not to Hamdan (according to SC).

I am really not sure if the problem was with the SC here, or with Congress.

If Hamadan means anything it is that the rules themselves must be looked straight in the face

After AUMF, AUMF/Iraq, Patriot I, Patriot II, Mcains torture bill, DTA and now Hamdan....I am not sure that the problem is not enough looking/talking/debating about the rules. The rules have been talked to death.

Could it be that the problem is the nature of the conversation? Have we as a society became so hyper-legal that the debate is not about right and wrong, good or evil? Is it all about crossing 'T's and dotting 'I's.

Is this just another battle of Goldsteins 'signifier & intent' war. That it does not matter what the intent of Congress was, it can be interpreted as one (SC) wants.

What is left but crafting crafty legalisms to ensure there are no loopholes, or that there are indeed loopholes.

As Samuel Johnson said, "Such stupidity is not in nature." Therefore this coterie of fancy lawyers, long since bereft of humility or modesty (see "The Metaphysical Club" regarding Mr. Justice Holmes), glories in appointing itself a super-legislature. As Boss Tweed said to Thomas Nast, "What are you going to do about it?"

Maybe one or more Congressional types will rouse from partisan stupor to this latest exercise in judicial idiocy. Meantime, there remains a Real World out there, and frankly, no citizenry as a whole will sit quiet forever while foolish wordsmiths sell out not merely their birthright of liberty but their lives, their fortunes, and their sacred Honor.

Which brings us to the Times... from what I read, the consensus is that Bush II's administration will do nothing. This treasonous journal's accreditation will not be revoked; despite leakers' violation of sworn duties, no subpoenas will seek out their identities; despite the extremely clear wording of applicable statutes, plus the President's inaugural pledge to "take care that the laws be faithfully executed", Bush's Attorney General will not prosecute this egregious offense any more than last December 2005's, or indeed the inevitable next case-- which the Times is probably preparing as we speak.

A consensus also holds, that this treacherous betrayal of American security in time of war will no doubt be rewarded by a Pulitzer Prize, granted by extreme leftist ideologues with no more dignity or respect for law than Castro or Kim Jong-il (both of whom the Times has fulsomely praised whenever their dictatorial interests conflict with America's own policies [cf: Reagan in Grenada]).

Nixon never prosecuted a seditious if not treasonous John Kerry in 1971, or pursued Pentagon Papers violators in 1973 - '74. Today, Pinch Sulzberger and his ilk take this as a license for ongoing sabotage of America's forces fighting overseas.

We are not alone in considering George W. Bush to be blindly delinquent in his duty here, to the point of virtually inviting the next incident-- and the more lives and treasure lost, the more Sulzberger celebrates the success of his cabal. Aiding and abeting America's enemies for purposes of puerile self-gratification, one wonders whether Sulzberger and Keller might find retribution not by some jihadi barbarian but from a returnee upholding "honor" in a way the Times has never yet seen fit to condemn when it applies to others.

The agenda for a lot of the left is political. They want to use the courts to win elections, and to lose the war (which they think will give them a Viet Nam like landslide). So by giving each Al Qaeda prisoner a trial, that gives them a chance to lie about atrocities from the US, and to force intelligence information to come out in the court room. It also "puts a face" on the enemy. A few of the enemy might be con men types, good liars, who could charm people on TV. If nothing else they could pump up Islamic people against the US (and the Left hopes, Republicans).

ACLU looks into terrorist brainscansJun. 30, 2006 at 11:52AM The American Civil Liberties Union is seeking information about alleged brain-scanning usage on suspected terrorists. The ACLU said it has filed Freedom of Information Act requests with all the primary American security agencies. The group contends the procedure should not be used until it's proven effective -- "and we are a long way away from that point, according to scientists in the field." The ACLU says its request for more information comes amid suspicions that the U.S. government is using cutting-edge brain-scanning technologies on suspected terrorists.

Reading it over, it looks like the DTA was drafted poorly enough that the Supreme Court had an excuse. It said that in cases 2 and 3 the a lower court had exclusive control in both existing and new cases, but in the #1 situation for the Hamdan case, it didn't say anything at all. So either Congress wanted it only for new cases and the Court is right, or it was a screw up.

The Supreme Court’s “Hamdan v. Rumsfeld” decision, if I understand the commentary and selected quotes, holds that since al-Qaeda is known to have operated within the territories of various signatories to the Geneva Conventions, each of those signatories is therefor bound to treat al-Qaeda or any person suspected of being associated with al-Qaeda according to the limits and constraints of the conventions, regardless of where they encounter them. [My emphasis] Where battlefield prisoners have been taken into custody in parts of the world where repressive and terrorist regimes otherwise reject all the niceties of both the U.S. constitution and the Geneva Conventions, the wise ones of the court have declared that the rule of the U.S. constitution and the Geneva Conventions SUPERSEDE any other law.

But, Wait! Every Islamic Jihadist is by definition a member of a group that operates in all territories of all the signatories to the Geneva Convention. The court’s reasoning essentially means that any MUSLIM terrorist can claim to have the full protection of the Geneva Conventions, simply on that basis. Of course, the inexorable extention of the court’s logic is that anyone who opposes the U.S. on any basis, being a human is thereby a member of a group that operates in all the territories of signatories to the Conventions, and so is fully protected by those Conventions.

This is insane beyond any watermark set by the infamous Dredd Scott decision, in which the U.S. Supreme Court majority held that blacks — even those free descendants of former slaves — were not citizens of the United States, and that they therefor had no right to bring suit in a federal court.

There is no need to examine the details of Dred Scott v. Sanford; the excruciatingly brutal point is that there is nothing SACRED about the alleged wisdom and character of a bunch of old guys who have managed to get themselves appointed to the Supreme Court. They can be dunderheads, simpletons, and pewling loons. We are lucky when we get someone on the bench who is humble enough to consider the possibility that he might be WRONG on some issue.

A few years ago, I had never heard the precise phrase “Transnational Progressivism” — a more sophisticated version of the epithet “One-Worlder.” An earlier generation reserved that for the toplofty moralists who believed that the world would be a fine place if a world government like the United Nations ran things. Most of those folks subscribed to a murky, collectivist sense that utterly discounts EVERYONE else’s most cherished beliefs, customs, faith, language, and property rights. John Fonte wrote an essay in 2002 for the Foreign Policy Research Institute publication Orbis (http://www.fpri.org/ww/0306.200205.fonte.ideologicalwarwithinthewest.html> “The Ideological War Within the West”) that helps clarify the intent and dimensions of the T-P mentality. The most important point he makes is that the movement, which is presented by many of its admirers as arising from a vast spontaneous upswelling of the world’s oppressed peasants and workers, is in fact, just another garden-variety elitist power-grab.

"The social base of transnational progressivism constitutes a rising postnational intelligentsia (international law professors, NGO activists, foundation officers, UN bureaucrats, EU administrators, corporate executives, and politicians.) When social movements such as “transnationalism” and “global governance” are depicted as the result of social forces or the movement of history, a certain impersonal inevitability is implied. However, in the twentieth century the Bolshevik Revolution, the National Socialist revolution, the New Deal, the Reagan Revolution, the Gaullist national reconstruction in France, and the creation of the EU were not inevitable, but were the result of the exercise of political will by elites."

It will not escape the notice of the intelligent Islamic antagonist that the U.S. Supreme Court decision traverses their right to govern their own regions. Shariah carries no more weight with the Supreme Court than the Girl Scout’s Oath. Firmly believing in their own infalliability, the justices want to be regarded as bound to a scrupulous impartiality that is in fact, a doctrinaire imposition of an untested and naive elitist theory.

If the source I am reading is correct, there are significant advantages to classifying Al Qaeda as Unlawful Combatants rather than POWs.

(1) POWs only need to answer interrogation with a few pieces of information like name, rank, date of birth, serial number. (But on the other hand, nothing whatever is specified for unlawful combatants.)

(2) POWs cannot be sent back to their home countries for trial. (But unlawful combatants presumably can, again, the Geneva Convention doesn't mention them at all.)

(3) POWs must be tried in the same courts that soldiers of the country that captured them would be (i.e US soldiers, so either US court martial or civilian court) (Again, the GC says nothing about unlawful combatants, so depending on the courts maybe they could be tried in a military tribunal.)

There's something very odd about the situation now that we have Israel's government threatening to kill the Palestinian Prime Minister while at the same time it holds much of the Palestinian Assembly in custody.

While they are in it's custody they are perfectly safe, as Israel is responsible for their well-being. But the minute Israel tosses them back over the fence it can then kill any of them at will and at any time of the day or night, either from the air or by using local contractors.

I'm not even criticizing what Israel is doing, but the logic here has to be loopy somewhere, and in the end unsustainable.

The way this is going, and perhaps in the field we are already a good part of the way there, is that for a Western country we don't ever take a whole class of people into custody; if you are recognizable as one of those people the full extent of our interaction is that we either kill you or we don't. In between is a literal 'No Man's Land', any subtler options having been ruled out one after another by the 'Human Rights' Pooh-Bahs.

But Congress gets to define 'War Crimes' for the UCMJ. Part of the Hamdan problem was that there is no 'conspiracy' provision for 'War Crimes'.

Most of the Gitmoians are part of the 'conspiracy' of AQ, members who help, assist, plan, or hope to carry out the terrorist attacks, but have done nothing overt yet. They cannot be tried for 'War Crimes'.

Thirdly, Chester hits a very big nail on the head when he states that Hamdan is a turning point in the application of war conventions and treaties and implicit in that is that soverign states that play by the rules are most vulnerable in the face of non-state organizations that don\'t.

My view is that for the time being we\'re stuck with our conventions and treaties just like the police are stuck with their rules and regulations even when going against the most depraved serial killer. As Wretchard notes, privateering is not desirable, but it may be inevitable.

To say that these jihadi terror organization are non-state organizations to be completely ignorant of their history and how they come into being. I\'m amazed Wretchard has let that comment slide. All the terror groups born in the ME have ties to Secret Service organizations in their respective client States.